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Report No. 177

Response to the questions raised in the Consultation Paper

Delhi Seminar: Three Seminars were conducted by the Law Commission at Delhi, Calcutta and Hyderabad. At the Seminar held in Delhi, two divergent and sharply opposing viewpoints emerged. One was the view espoused by the police officers (barring certain exceptions which we shall refer to later) and the other by the members of the Bar and the representatives of the Human Rights' organizations. The first view was forcefully articulated by Shri Padmanabahiah, former Home Secretary, Government of India. He submitted that in fact the number of arrests vis-à-vis the number of crimes is decreasing and that this is not the right time to change the law relating to arrest.

He submitted that there is no clear data which establishes the misuse or abuse of the power of arrest by the police. The reported misuse is really on account of increase in crime and of explosive growth of the population. He also opined that arrest is one of the most immediate preventive actions that can be taken by police and this power should not be curtailed. Today only the fear of arrest is there among the criminals but not the fear of conviction because of the undue delays in the courts.

While welcoming the idea that the guidelines in D.K. Basu should be incorporated in the statute, he opposed the idea of NGOs being permitted to visit police stations. His suggestion was that legal aid cells, not involved in the particular case, be given the right to visit police stations.

He was supported in this view by Shri Ashok Vijaywargiya, Home Secretary, State of Chattisgarh, Shri Ganeshwar Jha of Border Security Force (who suggested additionally that the status and salaries of the police personnel be upgraded and they should be asked to undergo proper and effective training), Shri M.L. Sharma, IGP, Rajasthan (who was also of the opinion that the law relating to arrest cannot be examined in isolation but should be studied as a part of the entire criminal judicial system), Shri Masud Choudhary, IGP of J&K State, Shri Hira Lal, former IGP Gujarat, Shri Arun Gupta, DIG, CBI and Shri S.K. Sharma, Legal Adviser, CBI.

Shri Jagdish Singh, IGP, UP, however, agreed with all the recommendations of the Law Commission except the one contained in para 3.4 of the Consultation Paper (permitting the registered NGOs to visit police stations).

Shri Dalpat Singh Dinkar, Deputy Director, Bureau of Police Research and Development while generally supporting the views of Shri Padmanabahiah, welcomed any measures to check the abuse of power of arrest. Similarly, Shri G.S. Tiwari, Director, Ministry of Defence opined that the root cause of abuse of this power lies in the fact that the police officers who exercise vast police powers are not properly educated nor properly trained in the relevant provisions of law, much less in the human rights principles.

The opposite view was articulated with equal force by Shri P.P. Rao, Senior Advocate, Supreme Court of India and former President of the Supreme Court Bar Association. He suggested that measures should be adopted to check the irregularities committed by police during arrest in the matter of date of actual arrest and the treatment of the detainees. He suggested that the law relating to bail should also be revised because it is here that tremendous corruption takes place.

Safeguards must also be provided to the accused during investigation; the time for interrogation be fixed, say, between 10.00 am to 5.00 pm and the magistrates should satisfy themselves that there is no delay in producing the accused after arrest. He supported the suggestion of compulsory medical examination at the time of production of the accused before the magistrate by a doctor of the accused's choice. He supported the idea of approved NGOs being allowed to visit the police stations and prisons.

He was supported in this behalf by Justice Rajinder Sachhar, former Chief Justice of Delhi High Court and a renowned Human Rights' activist, who added that most of the arrests take place under the preventive provisions like sections 107 to 109 and 151, which requires to be checked; he opined that the concept of fear of arrest is ill-suited and inconsistent with a democratic system. Shri K.T.S. Tulsi, Senior Advocate and former Addl. Solicitor General was of the opinion that arresting a person without proper basis and then dropping the case for lack of evidence is a violation of fundamental rights and human rights of the person concerned.

Shri Gopal Subramanium, Senior Advocate emphasized the importance of implementation aspect of law and upon the necessity of proper training of the police officers. Shri Ravi Nair from South Asian Human Rights Initiative generally supported the proposals while Shri Sushil Kumar, Senior Advocate opined that the corruption begins from the stage of recruitment itself and that the kind of training which is imparted to the police officers is wholly inadequate to the modern day policing.

Shri P.N. Lekhi, Senior Advocate, Shri Prashant Bhushan, Advocate, Smt. S.K. Verma, Director, ILI, Shri Manmohan Bara, Advocate, Orissa, Shri Krishnamany, Senior Advocate, Shri Dholakia, Senior Advocate and Shri Pundhir, Advocate generally supported the proposals of the Law Commission. Shri D.N. Srivastava, Advocate (former DGP) opined that it is time that the confessions made before the Superintendent of Police and higher police authorities are made admissible in evidence.

Calcutta Seminar: At the Seminar held at Calcutta in association with the West Bengal National University for Juridical Sciences, again two divergent views emerged as had happened at Delhi Seminar. However, the following further suggestions were put forward at this Seminar.

Justice Ganguly of Calcutta High Court suggested that the provision contained in sub-section (3) of section 46 (which recognizes by necessary implication, the power of a police officer to cause death of the person, in the course of arrest, if such person is accused of an offence punishable with death or imprisonment for life and resists or evades the arrest) requires to be modified. Justice Talukdar, a Judge of the Calcutta High Court supported the proposals of the Law Commission and emphasized the provisions concerning the arrest of a woman.

He criticized the exclusion of Armed Forces from arrest provided by section 45 and referred in this connection to the decision of the Privy Council in Cristie's case where it was held that a police constable was liable for prosecution for wrongful arrest. He suggested incorporation of a similar provision in the Code. He pointed out the anomaly of the statements recorded by customs officers during their investigation being made admissible while the statements recorded under section 161 CrPC are not admissible.

Shri N.C. Sil, Principal Secretary, Law Department, Government of West Bengal pointed out the total silence of the Consultation Paper with respect to economic offences. Otherwise he supported the proposals contained therein. Mr. Mukherjee, a retired District Judge suggested that in section 157(1) the words "reason to suspect" should be substituted by the words "reason to believe". He suggested that the law should provide that before a person is arrested, the police officer must be satisfied prima facie about the guilt of the accused.

Justice A.V. Gupta (retired) suggested that once a person is arrested and produced before a magistrate, he should be sent to judicial custody and should not be sent back to police custody. Shri J. Bagchi, Advocate pointed out the difficulties faced by accused persons in West Bengal in the matter of obtaining bail. He stated that the registered sureties do not come forward without receiving adequate money therefor; and because the relatives of the accused cannot act as sureties, many accused are facing serious harassment.

Other speakers, Shri Sen J., West Bengal Administrative Tribunal, Shri Tapan Bhattacharya, ASO, Human Rights, Ms. J. Sen, Shri Kirit Roy from MASUM, Shri Gupte, Dr. Nilanjan Dutta, APDR, Shri Brojo Roy, Centre for Care of Torture Victims, Shri Basu J. (retired), generally supported the proposals contained in the Consultation Paper, emphasizing the human rights' aspect.

On the other hand, Shri Arun Mukherjee, former Director, CBI, Shri A.M. Jordha, ARG Training, Shri Baugh from Police Training School, West Bengal, Dr. Sharad, Department of Forensic Sciences and Dr. Arun Mukherjee, former CBI officer, were of the opinion that no major changes should be effected in the law relating to arrest and that it would be more appropriate to undertake a study of the entire criminal judicial system in the country.

Hyderabad Seminar: At the Hyderabad Seminar, Shri C. Padmanabha Reddy, a leading criminal lawyer of A.P. High Court for the last more than 25 years, was the first speaker. After emphasizing the value of liberty and the necessity of regulating the power of arrest, he made the following suggestions:

(1) All the offences except certain serious offences should be made bailable,

(2) Every arrest should be notified in writing and it should be served upon the accused before he is arrested,

(3) The normal rule should be judicial custody and not police custody; the prison rules also require to be amended and improved,

(4) A mechanism should be evolved to screen the arrests made by the police.

Even where a writ of habeas corpus is filed for the production of the arrest of a person the police officers very often deny the arrest or shift the person from place to place. He however, opposed the idea of permitting the NGOs to visit police stations or prisons. He also opined that even after the decision of the Supreme Court in D.K. Basu, complaints of noncompliance with those directions persist and such complaints are not generally considered sympathetically by the higher officials.

Shri Bharat Chandra, Home Secretary, Government of AP emphasized the difficulty of finding a satisfactory solution to the problem of abuse of power of arrest by the police. He opined that the Consultation Paper suffers from a lacuna inasmuch as it does not mention or say anything about victims on whose grievances, arrests are made. According to him, the police is a "social institution" and hence suffers from abuse.

According to him further the politicians and bureaucrats have come to believe that the society needs to be policed more inasmuch other institutions of the State have virtually collapsed. He suggested that all offences should be made non-cognizable so as to eliminate any kind of abuse of discretion by the police in the matter of arrest. He concluded by saying if we are trying to put human rights above societal gains, what about the human rights of police?

Prof. Hargopal of University of Hyderabad, who is a renowned activist on the civil liberties' front, opined that the working of the police department requires a lot of improvement. He gave the example of France where both public and police cooperate with each other and the complaints of abuse of powers by the police are very rare. He pointed out that 80 to 90% of the custodial deaths in India are of those involved in theft, robbery and dacoity.

He questioned why it is so and answered the question himself by saying, it must be because of the deep respect for property that the police have. He regretted that police officers are not punished for abuse of power and that more often than not, the policemen protect each other on the plea of demoralization of the force. A person with power or a person with property, he said, is generally immune from arrest and it is only the poor who are at the receiving end. He bemoaned the deterioration of democratic values and structures in our society.

Dr. Amita Dhanda, Registrar of NALSAR suggested that the law relating to arrest should be so amended that the persons arrested are immediately released on personal bond. She was of the opinion that it is the marginalized sections of the society that face harassment at the hands of the police. Prof. Nageswar Rao examined the power of arrest in the context of the presumption of innocence.

He submitted that this power should be exercised only in exceptional cases and that the police force must be sensitized about the nature of this power and its impact upon human rights. He supported the idea of plea bargaining and suggested the creation of a body to monitor the exercise of power by the police. He also suggested that confessions made before police officers of the rank of DSP and above should be made admissible in evidence.

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